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MEAC Opinions - Conflicts of Interest

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Opinion

Subject Matter

Current Cites

2018-003PDF Download

A mediator is obligated to disclose any relationship that compromises or appears to compromise the mediator’s impartiality.

Rule 10.340, Florida Rules for Certified and Court-Appointed Mediators

MEAC Opinion 2004-008

2018-001PDF Download

Settlement agreement language inserted into an agreement by the mediator regarding a mediator’s compliance with the ethical rules does not promote or respond to the needs and interests of the parties, may create an obstacle to the parties signing the agreement which otherwise memorializes their agreed upon terms, and may result in the parties feeling coerced to agree to additional substantive language regarding ethical issues extraneous to their dispute in order to obtain a written agreement. 

Rules 10.230(b), 10.300, 10.310(a) and (b), and 10.420(c), Florida Rules for Certified and Court-Appointed Mediators

MQAP 1997-005

2017-021PDF Download

Consistent with MEAC Opinion 2017-002, a mediator shall not perform the dual roles of mediator and oral interpreter for a deaf party.

 

Rules 10.330(a), 10.340(d), and 10.410, Florida Rules for Certified ad Court-Appointed Mediators

MEAC Opinion 2017-002

2017-018PDF Download

The MEAC answers several questions about conflicts of interest involving a circuit court ADR unit and also regarding the unit’s mediators maintaining mediation confidentiality when the unit is supervised by an administrative magistrate.

Section 44.405, Florida Statutes

Rules 10.330(a), 10.340(a) – (c), and 10.910(a), Florida Rules for Certified and Court-Appointed Mediators

MEAC Opinion 2005-005

2017-016PDF Download

As required of any person, a mediator has a statutory obligation to immediately report a reasonable suspicion of abuse or neglect involving a vulnerable adult to the central abuse hotline under section 415.1034(1)(a), Florida Statutes.  In some circumstances, after making a mandatory report, the mediator should decline a case or withdraw from a case being mediated.

Rule 10.330(a) and (b), Florida Rules for Certified and Court-Appointed Mediators

Sections 39.201(1)(f), 415.1034(1)(a), and 415.107, Florida Statutes

MEAC Opinion 2012-007

2017-015PDF Download

Disclosure of a conflict of interest shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.  A mediator who is a member of a law firm representing a party who is adverse to a party at mediation has a clear conflict of interest which may not be waived by the parties.

Rule 10.340, Florida Rules for Certified and Court-Appointed Mediators, and Committee Note

MEAC Opinions 2002-005 and 2008-007.

2017-009PDF Download

Prior consultation with a party to a mediation by a member of the mediator’s law firm requires disclosure by the mediator, but is a waivable if the parties agree.

Rules 10.330(a), and 10.340(a) – (c), Florida Rules for Certified and Court-Appointed Mediators

MEAC Opinion 2011-014

2017-008PDF Download

If a mediator is a party in case A, it would be a clear conflict of interest which would compromise the mediator’s impartiality for the mediator to mediate case B which involves the mediator’s attorney and the attorney and opposing party in case A.

Rules 10.330(a) and 10.340(a), Florida Rules for Certified and Court-Appointed Mediators

2017-002PDF Download

Consistent with MEAC Opinions 2011-017 and 2014-004, a mediator shall not perform the dual role of a mediator and translator or interpreter.

 

Rules 10.220; 10.310; 10.330(a) & (b); 10.340(d) and the Committee Note to rule 10.340;  10.370(a); 10.410; and 10.420(b), Florida Rules for Certified and Court-Appointed Mediators

MEAC Opinions 2011-017 and 2014-004

2015-003PDF Download

The Florida Rules for Certified and Court-Appointed Mediators do not contain a prohibition against a mediator serving as an arbitrator in a case the mediator previously mediated.  The mediator must ensure the parties have a complete understanding of how the mediator’s role will change and they must waive the conflict of interest and confidentiality of the mediation.

Rule 10.310, Committee Note,

MEAC Opinion 2009-002

 

2014-009PDF Download

A trainee observing a mediation to fulfill mentoring requirements for initial mediator certification may not serve in the dual capacities of trainee and language translator or interpreter. 

 

Section 44.403(2), Florida Statutes

In re: Procedures Governing Certification of Mediators, Fla. Admin.  Order No. AOSC11-1 (January 10, 2011)

MEAC Opinion 2011-017

2013-011PDF Download

The Notice of Vendor Expectations (Notice) the mediator is questioning creates a non-waivable conflict of interest because of the language it contains.

Rules 10.310(a), 10.330(a), 10.340(a), 10.360(b), 10.520 and 10.620

2013-010PDF Download

It is a clear conflict of interest for a mediator to mediate a case when a party’s attorney is or was previously related to the mediator.  A clear conflict of interest cannot be waived regardless of disclosure.

Rules 10.330(a), 10.340(a) and (c)

MEAC Opinion 2004-008

2012-006PDF Download

Under certain circumstances, an attorney who conducted a joint representation of a couple in an adoption or in working with them on an estate plan, may, upon both parties’ request, subsequently serve as their mediator in an unrelated legal proceeding.

Rules 10.200, 10.300, 10.330, 10.340, 10.370

 

2012-004PDF Download

Question One:  In a case in which a mediator’s former law partner is representing a party as an advocate subsequent to the mediator leaving the law firm, there is no pre-determined amount of time that must elapse before the mediator may mediate such cases.  In conflict of interest cases, each case must be evaluated individually through a series of filters to determine if the conflict is waivable or a “clear” conflict and therefore non waivable.

Question Two:  It is a clear conflict of interest for a mediator to mediate a case in which his/her former law partners represented any of the parties while the partnership was in effect.  This would be a non waivable conflict.

Rules 10.330, 10.340

Committee Note to Rule 10.340

MEAC Opinions 2002-005, 2008-007, 2009-009

 

2012-003PDF Download

In this example, the conflict is resolvable with appropriate mediator disclosures and party agreement as outlined in the Committee Note to Rule 10.340, Conflicts of Interest, Florida Rules for Certified and Court-Appointed Mediators.

Rule 10.340 (a)-(c) with Committee Note, Florida Rules for Certified and Court-Appointed Mediators

2011-017PDF Download

A mediator is prohibited from taking on the dual role of mediator and interpreter or translator.

The responsibilities of a Residential Mortgage Foreclosure Mediation Program (RMFMP) and the actions of a RMFMP manager are outside the jurisdiction of the MEAC.

Rule 10.340(d) and

Committee Note

MEAC Opinions 2011-004, 2010-004, 2007-005, 2004-004 

2011-016PDF Download

It is beyond the jurisdiction of the MEAC to render an opinion as to attorney obligations.

Rule 10.340 and Committee Note

2011-014PDF Download

A mediator who is a member of a law firm or professional organization is obliged to disclose any past or present client relationship that firm or organization may have with any party involved in the mediation.  There is no dispensation if the conflict is caused by a member of a law firm for which the mediator works or with whom the mediator is affiliated.

 

Whether the conflict can be waived by the parties in order to allow the mediator to conduct the mediation will depend on the factors of the particular case.

Rules 10.340 (a) – (d) and 10.340 Committee Note,

MEAC Opinions (listed in order as referenced in question): 2010-008, 2003-006, 2002-005, 2008-007, 2009-009 and 2004-007

 

2011-011PDF Download

The questions presented relate to the Code of Ethics for Public Officers and Employees, Chapter 112, Florida Statutes and not the Florida Rules for Certified and Court-Appointed Mediators. 

Rules 10.330, 10.340, 10.520, 10.620

MEAC Opinions 2005-002, 1999-009, 1999-006

2011-004PDF Download

The Committee remains confident in the continuing correctness of MEAC 2010-004 which states in part, “a mediator is prohibited from taking on the dual role of mediator and notary.”

 

MEAC Opinion 2010-004, 2007-005 and 2004-004

Rule 10.340(d),

Note to Rule 10.340

2010-009PDF Download

Answer to Question One:  No, it is not appropriate for a court-appointed mediator to act as plaintiff’s representative during the pre-trial process.

 Answer to Question Two:  A court-ordered mediation begins when the court refers the case to mediation.  In this scenario, actions undertaken prior to a court referral to mediation would be outside the mediation process. 

Rules 10.330, 10.340(a), and 10.420(a)

2010-008PDF Download

Answer to Question One:  A mediator assigned through the Residential Mortgage Foreclosure Mediation Programs (RMFMP) or in any other mediation venue may not use the mediation conference to solicit future business from the parties during the mediation conference.

     Answer to Question Two:  It is not appropriate for a mediator to use a RMFMP mediation conference (or any other mediation conference) to solicit and remove the mediation to his office for private mortgage foreclosure mediation.

     Answer to Question Three, Part A:  A mediator should recuse himself/herself from a mediation conference when he/she has represented defendants against a specific financial institution that is a party at a current mediation conference.  This is a non waivable conflict.

     Answer to Question Three, Part B:  A mediator should not declare an impasse simply because one or both parties feel there is a conflict of interest with the mediator and one of the parties has requested a different, neutral mediator.

     Answer to Question Three, Part C: The actions of a Program Manager of a RMFMP are outside of the jurisdiction of the MEAC which is charged with providing ethical guidance to certified and court-appointed mediators. 

Rules 10.310, 10.330(c), 10.340(a) and (c), 10.510, 10.620

Committee Note to Rule 10.340

MEAC Opinions 2001-006, 2003-006, 2004-005

 

2009-009PDF Download

It is a conflict of interest for a mediator to mediate a case when one of the mediator’s law partners is currently performing transactional legal services for the law firm representing the party to the mediation.

Rule 10.340

MEAC Opinions 2002-005 and 2008-007

2009-004PDF Download

A mediator’s impartiality is not necessarily compromised nor is a conflict created simply because a mediator agrees to serve for a reduced fee as a “preferred” provider; however, any mediator who has an ongoing relationship for the provision of mediation services needs to determine whether that relationship affects impartiality or creates a conflict of interest.

Agreeing to the terms described and mediating cases scheduled as a result of that agreement does not appear to compromise a mediator’s integrity or impartiality nor violate the requirement that mediators respect the professional relationships of other mediators.

Fla. Stat. § 440.25(3)(b) (2008)

Rules 10.330, 10.340, 10.380(a) and (e), 10.620, and 10.660

MEAC Opinions 96-001 and 98-006

 

2009-003PDF Download

A mediator’s permissible marketing efforts depend on fact-specific circumstances such as cost and whether intended to cultivate favor with particular potential future clients.

Rules 10.330; 10.340; 10.610, 10.620

MEAC Opinions 2001-006 and 2002-004

2009-002PDF Download

The Rules for Certified and Court-Appointed Mediators do not contain a specific prohibition against mediators serving as an arbiter and interpreter of a settlement agreement the mediator previously mediated; however, engaging in such activity raises serious ethical concerns.   

Rules 10.310, 10.310 Committee Note, 10.330(c), 10.370, 10.420(c), 10.620, 10.640

MEAC Opinions 1996-002 and 1998-006

2008-008PDF Download

There is a clear conflict of interest when a mediator, having mediated a dispute, subsequently represents or otherwise takes a position for or against a former party in a related matter.

 

Rules 10.340 (a)-(c), 10.620, and 10.650

MEAC Opinions 94-002, 94-003, 96-002, and 2005-004

Rules 4-1.12 and 4-2.4, Rules Regulating the Florida Bar

2008-007PDF Download

A clear conflict of interest exists whenever a law firm in which a mediator is a partner is part of an adversary process involving a party to the mediation regardless of the size of the law firm, the location of other cases, or the mediator’s lack of personal involvement.

Rule 10.340

MEAC Opinion 2002-005

2007-005PDF Download

It is not ethically proper to prepare retirement orders after having served as mediator for the case regardless of whether the parties have waived any conflict of interest. 

Rules 10.340(d) and 10.620

MEAC Opinions 2004-004, and 2005-004

2005-006PDF Download

A mediator (who is also an attorney) engaged in an ongoing legal relationship with a third party administrator must not serve as a mediator in cases involving the third party administrator because it is a clear, nonwaivable conflict of interest.  A mediator (who is also an attorney) may serve in cases involving a reinsurer, even if some of the mediator’s legal clients utilize the same re-insurer, if the relationship is disclosed and the parties waive any potential conflict because such a relationship is not a clear conflict of interest. 

Rules 10.330, 10.340, and 10.620

MEAC 2003-006 and 2004-007

 

2005-004PDF Download

It is inappropriate for a mediator to represent either one party or both parties in any dissolution proceeding or in any matter arising out of the subject mediation.   There is no ethical obligation under the Florida Rules for Certified and Court-Appointed Mediators for a mediator to report allegations of ethical violations by another mediator.

Rule 10.340(d)

MEAC 94-003 and 2004-004

 

2005-002PDF Download

While your position as a judicial assistant does not automatically prohibit you from mediating, you are still obligated not to mediate a matter that “presents a clear or undisclosed conflict of interest,” Rule 10.340(a).  You are required to make this determination on a case by case basis.

Rule 10.340(a)

MEAC 99-006

2004-008PDF Download

Mediating a case your daughter is personally handling would be a nonwaivable, clear conflict, while her firm’s case with which she had no involvement, is a conflict of interest which may be waivable after disclosure.

Rules 10.330(a) and 10.340(a)-(c)

2004-007PDF Download

MEAC Opinions are based on the facts presented in the question.  Prior representation of a party to a mediation, which involved different parties, a different case or different subject matter would be subject to disclosure and may be waivable based on a case by case determination.

Rule 10.340

MEAC 2003-006

2004-004PDF Download

A.  A mediator may record or memorialize the parties’ agreement but, it is not the mediator’s role to make substantive decisions for the parties.  In recording the parties’ agreement, a mediator must observe the ethical rules regarding impartiality, professional advice, and other professions’ standards, such as the unauthorized practice of law.

B. While a mediator may assist the parties in completing authorized forms, a mediator should stop short of “drafting” the Petition for Dissolution, Answer, or other pleadings. 

C.  Drafting pleadings and providing advice on how to file them would be an inappropriate additional service not directly related to the mediation process.

D.  It is inappropriate for a mediator to represent either party in a dissolution proceeding or in any matter arising out of the subject mediation.

E.  The Committee declines to answer the question of whether appearing at a final hearing and eliciting “basic information” is the practice of law.  However, such activity is inappropriate for a mediator.

Rules 10.330(a); 10.340(d); 10.420(c); 10.620; 10.650;

12.740(f)(1)

Section 44.404(1), Florida Statutes

MEAC 94-003, 2000-009, 2001-003

 

2003-006PDF Download

Having once acted as an advocate for one party, it would be unethical for a mediator to subsequently conduct a mediation, irrespective of waivers from all parties, since there would be a clear conflict of interest pursuant to rule 10.340(a).

Rule 10.340(a) and Committee Notes

MEAC 94-002, 94-003 and 99-001

2002-005PDF Download

Serving as the mediator for a case involving a party to mediation against whom your law firm has cases pending creates a clear conflict necessitating the withdrawal of the mediator, regardless of the express agreement of the parties

Rule 10.340

MEAC 2001-009

2001-011PDF Download

It would be ethically inappropriate to become counsel of record for either party in their pending divorce when the first contact was a joint meeting to discuss mediation.

Rules 10.310, 10.330(a) - (c), 10.360(a), 10.370(b) - (c)

MEAC 94-003, 97-009

Note: Changes to the rules in 2006 may impact this opinion.

2001-009PDF Download

A.  Referring cases to and receiving referrals from a firm for a fee may constitute a conflict necessitating the mediator’s withdrawal.

B.  A mediator must disclose former associations, such as previous employment, but is not be required to withdraw unless such past relationship constitutes a clear conflict.

Rules 10.330(a), 10.340(a)-(c), Committee Note to rule 10.340

2000-008PDF Download

A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases.

Rules 10.340(a)-(c)

MEAC 99-007

2000-006PDF Download

A mediator is not precluded from mediating as case in which one of the parties who previously attended a parenting course taught by the mediator.

Rules 10.330, 10.340(a), 10.340(c)

MEAC 97-003 and 99-008

99-009PDF Download

 

The mediation rules do not prohibit a full-time mediator employed by the county from mediating privately on his/her own time.

Rules 10.330, 10.340, 10.500, 10.620

Chapter 112, Part III, Florida Statutes

Note: Changes to the rules in 2000 may impact this opinion.

99-008PDF Download

 

Providing training to persons who are later parties to a mediation does not preclude a mediator from mediating so long as disclosure is made and parties request the mediator to serve.

Rules 10.340(a) - (c)

 

99-007PDF Download

 

A GAL is not expressly prohibited from becoming certified or serving as a mediator in dependency cases.

Rules: 10.340(a) - (c)

 

99-006PDF Download

A mediator’s employment as a Deputy Clerk do not inherently cause ethical concerns.

Rules 10.330(a), 10.340, 10.620

 

99-001PDF Download

 

It is permissible for an attorney mediator to subsequently serve as an attorney for an individual in an unrelated case against a party who participated in a mediation with this mediator.

Rules 10.330(c), 10.620

MEAC 97-002

 

98-004PDF Download

 

A mediator may disclose that s/he has mediated with an attorney, claims representatives, or other parties  previously, but is not required to do so unless there is a “close personal relationship” or other circumstance specifically referenced in the rules.

Rules 10.330(b), 10.340(a)-(b)

 

97-003PDF Download

 

Mediating for parties who have been marriage counseling clients is permissible, if both request.

Rules 10.330, 10.340(b), 10.610, 10.620, 10.650

Note: Changes to the rules in 2000 may impact this opinion.

97-002PDF Download

 

An attorney-mediator may represent a party in a subsequent dissolution of marriage.

Rules 10.330(c), 10.340(d), 10.620

Note: Changes to the rules in 2000 may impact this opinion.

96-002PDF Download

Mediator should decline serving as a Special Master following mediating a case.

Rules 10.360, 10.620;

Section 44.405(2), Florida Statutes

Note: Changes to the statute in 2004 and rules in 2006 may impact this opinion.

94-003PDF Download

 

Serving as counsel following service as mediator for the same case is not permitted.

Rules 10.340(d), 10.420(c), and 10.620; 1.730(b) and 12.740(f)(1)

94-002PDF Download

 

Serving as co-counsel following service as mediator for the same case is not permitted.

Rules 10.200, 10.330, 10.340, 10.360, 10.620

Note: Changes to the rules in 2006 may impact this opinion.

Contact

For additional information please contact The Dispute Resolution Center at 850-921-2910 or at DRCmail@flcourts.org.